Brooks v. Russell

United States District Court, E.D. Missouri, Eastern Division

March 27, 2017

MARK BROOKS, Petitioner,v.TERRY RUSSELL, Respondent.

MEMORANDUM AND ORDER

AUDREY
G. FLEISSIG UNITED STATES DISTRICT JUDGE

This
matter is before the Court on the pro se petition of Missouri
state prisoner Mark Brooks for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. On November 18, 2009,
Petitioner was convicted by a jury of the forcible rape of
R.R., occurring on November 12, 2001, and the attempted
forcible sodomy of L.H., occurring on December 2, 2001.
Petitioner was sentenced on January 13, 2010, to 15 years and
five years, respectively, with the sentences to be served
consecutively. His convictions and sentences were affirmed on
direct appeal. Petitioner's motion for state
post-conviction relief was denied following an evidentiary
hearing, and this denial was affirmed on appeal.

For
federal habeas relief, Petitioner claims that his
constitutional rights were violated by: (1) defense
counsel's failure to move for dismissal as a result of
the state's violation of Petitioner's right to a
speedy trial; (2) defense counsel's failure to move for
dismissal due to the state's destruction of
“materially exculpatory” evidence; and (3) the
trial court's failure to sever the charges arising out of
the crimes against the two victims. For the reasons set forth
below, habeas relief shall be denied.

BACKGROUND

Pre-Trial
Events

On
April 19, 2002, the State filed a felony complaint against
Petitioner for the crimes of conviction, and an arrest
warrant was issued that same day. On April 22, 2002,
Petitioner was arrested in Illinois on unrelated charges. In
December 2004, the evidence custodian destroyed the physical
evidence (clothing worn at the time of the rape and a sexual
assault kit) related to the rape of R.R. On October 23, 2006,
while still in custody in Illinois, Petitioner moved for a
speedy trial in the Missouri case. Petitioner remained in
custody in Illinois until the Illinois charges were resolved
in January 2007. On January 24, 2007, Petitioner was returned
to and incarcerated in Missouri.

On
March 23, 2007, a six-count information was filed against
Petitioner, with four counts related to the crimes against
R.R., on November 12, 2001, and two counts related to the
crimes against L.H. on December 2, 2001. Petitioner's
arraignment was initially scheduled for June 2007, but on
Petitioner's motion, it was continued to July 24, 2007,
at which time trial was set for December 3, 2007.

On July
6, 2007, Petitioner moved to sever the counts related to R.R.
from the counts related to L.H. He argued that the two sets
of counts were not alleged to have occurred as part of the
same transaction or scheme. The motion to sever was denied.

On
November 14, 2007, Petitioner entered a plea of not guilty by
reason of mental disease or defect, and the trial was
continued to allow for a psychological evaluation of
Petitioner. A final psychological evaluation was filed with
the court on October 27, 2009, concluding that, at the time
of the offenses, Petitioner was not incapable of knowing or
appreciating the nature, quality, and wrongfulness of his
conduct. Petitioner's case went to trial on November 16,
2009.

Trial

The
evidence adduced at trial established the following. In
November 2001, R.R. was driving to a video rental store when
she saw Brooks driving a truck on a road near the store. As
R.R. testified, Brooks turned around the truck and drove it
into the store's parking lot. Brooks exited the truck and
approached R.R. asking if she had a cell phone. R.R. replied
that she did not, and pointed Brooks to a pay phone he could
use. Brooks initially walked toward the pay phone, but turned
around and entered R.R.'s car and forced her into the
passenger seat. Brooks turned the car on and drove out of the
parking lot, and eventually stopped in a wooded area.

After
parking the car, Brooks exited the car and made R.R. perform
oral sex on him. Brooks then removed R.R.'s clothing and
performed oral sex on her. Brooks also engaged in sexual
intercourse with R.R. R.R. asked Brooks why he did this, and
Brooks replied that this was how he could get a woman. Acting
under a ruse, R.R. responded that she would go out with
Brooks, and gave him a piece of paper and pencil to write
down his name, address, and telephone number. Brooks did, and
R.R. gave this information to the police that night.

On
December 2, 2001, L.H. walked to a store to purchase
cigarettes. As she was returning home from the store, she saw
Brooks driving a pickup truck. Brooks stopped his truck next
to L.H. and asked if she wanted to smoke a joint together.
L.H. responded that she did, and she and Brooks drove to a
parking lot. After Brooks parked the truck, he started to
rummage around the truck as if he were looking for something.
Brooks then suddenly jumped onto L.H. While on top of L.H.,
Brooks reached into L.H.'s pants and touched her
genitals. L.H. struggled to stop Brooks from going further.
L.H. eventually struggled free and exited the vehicle. Brooks
then drove away, and L.H. ran to a nearby house and called
the police.

At the
close of state's evidence, Petitioner moved for acquittal
of all charges. The trial court granted the motion with
respect to two counts related to R.R. The trial court set out
each of the remaining four offenses in a separate jury
instruction and specifically advised the jury to consider
each count separately and to return separate verdicts for
each. As stated above, on November 18, 2009, the jury found
Petitioner guilty of one count of forcible rape of R.R. and
one count of attempted forcible sodomy of L.H. The jury was
unable to reach a verdict on the remaining two counts, and
the state subsequently dismissed them. The court sentenced
Petitioner to 15 years of imprisonment for the forcible rape
of R.R. and five years of imprisonment for the attempted
forcible sodomy of L.H., to run consecutively.

Direct
Appeal

Petitioner
raised one point on direct appeal. He argued that the trial
court erred in denying his motion to sever because the
charges related to R.R. were improperly joined with the
charges related to L.H., as the offenses giving rise to each
set of charges were unconnected, were not part of a common
scheme or plan, and were not of the same or similar nature.
Petitioner further argued that he was prejudiced because the
jury was likely to consider the evidence of one incident when
considering Petitioner's involvement in the other.

The
appellate court engaged in a two-step analysis in rejecting
this claim. The court first concluded that joinder was
proper, and then concluded that the trial court did not abuse
its discretion in refusing to sever the charges. The court
found that the strength in similarities between the crimes
overcame the “minor discrepancies” cited by
Petitioner. The court reasoned that the similarities in
victims (both were 18 years old), tactics and circumstances
of the assaults, and the passage of only one month between
the incidents, showed that joinder was proper. The appellate
court then found that the trial court did not err in denying
the motion to sever, as the number of offenses joined was few
and the facts and evidence were distinct and not complex. The
court noted that the jury was properly instructed, and the
jury's verdict, convicting Petitioner of only two of the
four offenses submitted, indicated that the jury was able to
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.